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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

9 FLRA No. 112
MINNESOTA ARMY NATIONAL GUARD,
THE ADJUTANT GENERAL, STATE OF
MINNESOTA, ST. PAUL, MINNESOTA
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
TONY KEMPENICH MEMORIAL CHAPTER
Charging Party
Case No. 5-CA-718
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
STIPULATION OF FACTS AND THE PARTIES' CONTENTIONS, THE AUTHORITY FINDS:
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) WHEN IT REFUSED TO IMPASSE TO AGREE TO A
FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN ITS
COLLECTIVE BARGAINING AGREEMENT WITH THE CHARGING PARTY (THE UNION).
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN TECHNICIANS
EMPLOYED BY THE RESPONDENT. ON FEBRUARY 23, 1980, THE UNION CITING
INTERPRETATION AND GUIDANCE, 2 FLRA 274(1979), REQUESTED THAT
NEGOTIATIONS BEGIN ON A GRIEVANCE PROCEDURE. EVENTUALLY THOSE
NEGOTIATIONS BECAME INTERTWINED WITH NEGOTIATIONS OVER A COLLECTIVE
BARGAINING AGREEMENT TO REPLACE ONE WHICH HAD EXPIRED IN 1978. ALTHOUGH
THE RESPONDENT INITIALLY TOOK THE POSITION THAT A UNION PROPOSAL WHICH
WOULD INCLUDE WITHIN THE SCOPE OF THE GRIEVANCE PROCEDURE MATTERS
GOVERNED BY SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968
WAS NONNEGOTIABLE, /1/ IT SUBSEQUENTLY MODIFIED ITS POSITION AND
PROPOSED THAT SUCH MATTERS BE EXCLUDED FROM THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE. THE UNION REJECTED THIS PROPOSAL AND INSISTED ON A
FULL SCOPE GRIEVANCE PROCEDURE. THE PARTIES REACHED IMPASSE ON, AMONG
OTHER THINGS, THIS ISSUE AND THE RESPONDENT REQUESTED, ON OCTOBER 15,
1980, THE SERVICES OF THE FEDERAL SERVICE IMPASSES PANEL (THE PANEL).
/2/
THE POSITIONS OF THE PARTIES HEREIN ARE SUBSTANTIALLY SIMILAR TO
THOSE OF THE PARTIES IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT,
9 FLRA NO. 92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE
PROCEDURE IS A MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS
REACHED, IS SUBJECT TO IMPASSE RESOLUTION PROCEDURES. BASED ON THE
REASONS SET FORTH IN THAT DECISION, THE AUTHORITY FINDS THAT THE
RESPONDENT'S ACTIONS HEREIN DID NOT VIOLATE THE STATUTE AS ALLEGED IN
THE COMPLAINT. /3/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-718 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 709(E) PROVIDES AS FOLLOWS:
(E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS
PRESCRIBED BY THE
SECRETARY CONCERNED--
(1) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL
GUARD MEMBERSHIP IS
REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO IS SEPARATED FROM THE
NATIONAL GUARD OR CEASES
TO HOLD THE MILITARY GRADE SPECIFIED FOR HIS POSITION BY THE
SECRETARY CONCERNED SHALL BE
PROMPTLY SEPARATED FROM HIS TECHNICIAN EMPLOYMENT BY THE ADJUTANT
GENERAL OF THE JURISDICTION
CONCERNED;
(2) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL
GUARD MEMBERSHIP IS
REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO FAILS TO MEET THE
MILITARY SECURITY STANDARDS
ESTABLISHED BY THE SECRETARY CONCERNED FOR A MEMBER OF A RESERVE
COMPONENT OF THE ARMED FORCE
UNDER HIS JURISDICTION MAY BE SEPARATED FROM HIS EMPLOYMENT AS A
TECHNICIAN AND CONCURRENTLY
DISCHARGED FROM THE NATIONAL GUARD BY THE ADJUTANT GENERAL OF THE
JURISDICTION CONCERNED;
(3) A TECHNICIAN MAY, AT ANY TIME, BE SEPARATED FROM HIS TECHNICIAN
EMPLOYMENT FOR CAUSE BY
THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
(4) A REDUCTION IN FORCE, REMOVAL, OR AN ADVERSE ACTION INVOLVING
DISCHARGE FROM TECHNICIAN
EMPLOYMENT, SUSPENSION, FURLOUGH WITHOUT PAY, OR REDUCTION IN RANK OR
COMPENSATION SHALL BE
ACCOMPLISHED BY THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
(5) A RIGHT OF APPEAL WHICH MAY EXIST WITH RESPECT TO CLAUSE (1),
(2), (3), OR (4) SHALL
NOT EXTEND BEYOND THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
AND
(6) A TECHNICIAN SHALL BE NOTIFIED IN WRITING OF THE TERMINATION OF
HIS EMPLOYMENT AS A
TECHNICIAN AND SUCH NOTIFICATION SHALL BE GIVEN AT LEAST THIRTY DAYS
PRIOR TO THE TERMINATION
DATE OF SUCH EMPLOYMENT.
/2/ PURSUANT TO SECTION 2429.5 OF ITS RULES AND REGULATIONS, THE
AUTHORITY TAKES OFFICIAL NOTICE OF THE FACT THAT BY LETTER DATED
NOVEMBER 19, 1980, THE PANEL DECLINED TO ASSERT JURISDICTION OVER THE
GRIEVANCE PROCEDURE ISSUE FOR THE REASON THAT THE ISSUE FORMED "THE
BASIS OF AN UNFAIR LABOR PRACTICE CHARGE, FILED BY THE UNION, WHICH IS
NOW BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY . . . . "
/3/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
ADDRESS THE RESPONDENT'S CONTENTION THAT SECTION 709(E) OF THE NATIONAL
GUARD TECHNICIANS ACT OF 1968 REQUIRES AS A MATTER OF LAW THE SPECIFIC
EXCLUSION OF MATTERS GOVERNED BY THAT SECTION FROM COVERAGE UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE. (BUT SEE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5
FLRA NO. 25(1981); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3486 AND NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER
INTERCEPTOR GROUP, 5 FLRA NO. 26(1981), REVERSED SUB NOM. NEW JERSEY AIR
NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP AND DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 81-1592 (3RD CIR.
APR. 12, 1982).)